Monday, February 24, 2014

Due South: Canadian Lawyers in the United States

Posted by
Bernard Hibbitts

Some readers of the Legal History Blog may remember Due South, a Canadian crime series from the mid-1990s that ran for several years on CBS. It was about a Canadian Mountie who ended up working in Chicago, and it highlighted the conundrums of a pointedly stereotypical Canadian trying to get along in American society. It aired at a time when a new generation of Canadians, including lawyers and legal academics like myself, were trying their hand at living south of the border in a post-free trade/NAFTA legal environment that made the pursuit of cross-border professional careers easier than it had been for decades. Inevitably, the new "Canadian Americans" looked around for compatriots. Being historically-minded, I eventually decided to look back to see whether other Canadian lawyers had come to the US previously.

Frankly I wasn't expecting to find many, but then I found a few, and then a few more, and then more, and more! They were from the twentieth century, the nineteenth, and even the eighteenth. They came from all regions and provinces of Canada, and they surprisingly ended up in virtually all parts of the US (not just in border states). There were men and women. There were some with pre-existing family connections to the US, and some with none. There were political refugees and ambitious careerists. There were Canadian-born individuals who were brought across the border at a young age and grew up to be lawyers, and there were trained and experienced Canadian lawyers who for various reasons pulled up stakes and moved south. There were practitioners and academics. There were those who ostensibly cut ties with Canada when they left, and then there were others who either kept up their connection or eventually went home. But all of them inevitably brought with them Canadian experiences and Canadian attitudes. After several years of investigation, I and my research assistant Megan McKee (now a graduate student in history at McGill) have put together a spreadsheet that tracks some 800 Canadian legal expatriates of one sort or another from the late 1700s through the end of World War II. Our work is ongoing.
I suppose at the end of the day I should have been more optimistic. After all (although neither Canadians nor Americans think about this much), Canadians made up a goodly proportion of the US immigrant population from the mid-1800s through at least the 1920s (for what it's worth, my Nova Scotian grandmother was a domestic servant in Boston in the 1920s; on the other side of the family, also in the 1920s, my Nova Scotian father attended public school in Buffalo, New York). In 1850, Canadians were the fourth largest incoming group, after immigrants from Ireland, England and Germany. By 1880, largely for economic reasons, they had taken over third position after the Germans and the Irish. By 1900, in fact, some 22% of all Canadian-born people - almost one-quarter of Canadians - were living in the United States.

Regardless of chronology, however, this was a quintessentially quiet invasion. With the exception of French Canadians in the New England states in the late 1800s who faced many challenges due to language and religion, Canadians did not tend to clump together or otherwise draw attention to themselves as newcomers, opting instead to cast their lot with their American neighbors. In retrospect this makes them very difficult to trace; technology and the Internet, however, have come to our aid, making expatriate Canadians - and Canadian lawyers - much easier to find in census and other surviving historical records than they would have been even 20 years ago.

Allow me to introduce you to a few of these hitherto-lost cross-border lawyers. Obviously in the limited context of a blog post any kind of comprehensivity is impossible, so I hope I'll whet your appetite for the results of the larger investigation by mentioning a few individuals who in various capacities can stand for both themselves and many other Canadian lawyers who headed "due south":

The Loyalist Son

Cadwallader Colden was the son of a New York Loyalist who fled to Canada and later to England after the Revolution. After English schooling young Cadwallader was sent to the new Canadian province of New Brunswick in 1785; he initially read law with another Loyalist lawyer, but in 1791 he moved south to do more of the same with a New York attorney. He practiced for a time before turning to politics, eventually becoming mayor of New York and a member of Congress.

The Rebel on Wall St.

Marshall Spring Bidwell was born in Massachusetts, but his parents moved to Canada before the War of 1812. He was called to the bar of Ontario (then Upper Canada) in 1821 and soon became active in reform politics, at one point introducing a bill in the provincial parliament to make it easier for American-born residents to gain Upper Canadian citizenship. He pressed hard for responsible government but was forced to leave the province after he was linked to the unsuccessful 1837 rebellion. Returning to the US, he joined the law firm of George Washington Strong in New York and became an acknowledged leader of the New York bar, all the while preserving an interest in Canadian affairs. He died at his desk in 1872.

The Aspiring Barrister

William Ellison was born in Ontario of American parents in 1857. He qualified for the Ontario bar in 1880 but soon moved to New York, where he qualified in 1882 and entered politics. He became corporation counsel for New York City in 1902 and at one point was considered in the running to be New York State governor, although he seems to have been criticized for being Canadian-born. He maintained an interest in Canada throughout his career. He wrote to Canadian legal periodicals advising Canadian students of the challenges of US practice, and in the late 1890s he penned a pamphlet on the unification of the United States and Canada.

The Woman Lawyer

Catharine Van Valkenburg Waite was born in Ontario in 1846 and was educated in the schools there before her farming family moved to Iowa in 1863. She married a lawyer and moved west with him when he was appointed to be a federal judge in Utah. Taking an interest in law, she eventually moved back east with her husband and become associated with the suffrage movement. She enrolled in law school at Union College (now Northwestern) in Chicago in 1885; she graduated and was called to the bar in 1886. This makes her the first Canadian-born woman to officially become a lawyer, 11 years ahead of Clara Brett Martin, who qualified in Ontario in 1897 and who is usually considered the first Canadian female lawyer. Waite went on to publish a legal journal, the Chicago Law Times, and was active in progressive causes until her death in 1913.

The Law Professor

Born in Prince Edward Island in the Canadian Maritime provinces, Everett Fraser graduated from Dalhousie University in Halifax, Nova Scotia, before going to Harvard Law School in 1907. Graduating in 1910, he was hired as a law professor at George Washington University in DC, becoming dean in 1914. While at GW, he supported the creation of an early legal aid clinic. He was hired away by the University of Minnesota in 1917, and became Dean there in 1920. During a 28-year tenure he established a progressive curriculum that emphasized the study of legislation and law student engagement in the public policy process, at one point recruiting a like-minded Canadian law professor, Horace Read, to join him. Read later returned to Canada to become dean of Dalhousie Law School.

The Public Servant

Another native of Prince Edward Island, Cyrus Ching (whose family was of Welsh ancestry) left for Boston in 1899 at the age of 23 and found work with a local street railway company. Electrocuted on the job, he went to law school at the YMCA-run Evening Institute for Younger Men (later Northeastern) and eventually became a labor negotiator renowned for his conciliatory approach to trade unions. While employed by US Rubber in 1919, he averted a major strike at the company's Canadian affiliate in Montreal by getting officials to agree to binding arbitration. He became a US federal mediator in 1941, and famously mediated the 1949 steel strike and several other high-profile US labor disputes of the 1940s and 50s.

Each of these individuals is fascinating on their own terms, but collectively they represent a challenge for both Canadian and American legal historians. For Canadians, they invite us to consider rewriting at least some of Canadian legal history (or at least that part of it that involves the history of Canadian lawyers) in a manner that transcends tidy national borders. As the history of American lawyering has not happened entirely within the boundaries of the United States, so the history of Canadian lawyering has not happened entirely within Canada.

For American legal historians, the tale of the Canadian lawyers - the few listed here, and the hundreds more like them - is a renewed invitation not just to look at the understudied history of "ethnic" or "immigrant" lawyering in the United States, but to redefine the limits of what we usually consider to be "ethnic". Ethnic lawyers are not just lawyers from societies or backgrounds that most of us consider in some way radically "other". They are also lawyers who are very much like us. Indeed, in many respects they are *all* of us. Just as the history of the United States can be told as a history of wave after wave of immigrant groups, the history of American lawyering could theoretically be told as a history of wave after wave of lawyers from different ethnic backgrounds, carrying with them various legal and cultural traditions and concerns. All of them - from the English to the Germans to the Irish to the Canadians to the Russians to the Italians and so forth - arguably brought something special to the enterprise of lawyering in this country. If we start looking for some of their distinct contributions, what we find might surprise us.